[Gnso-epdp-team] FW: ICANN org response to EPDP Team
icann at ferdeline.com
Sat May 25 22:44:01 UTC 2019
I have been reviewing the legal subcommittee's mailing list in order to better understand how this situation has arisen, and I came across [this email](https://mm.icann.org/pipermail/gnso-epdp-legal/2019-January/000012.html) from the previous Chair (emphasis added):
"To keep the ball rolling on the procurement of legal services, I am attaching a document to aid in the effort. ... To the Legal Team, I apologize that this document does not encompass all the thought that has gone into this effort or did not consult with you on this document but I wanted to get something to ICANN to expedite the procurement."
Given the situation we find ourselves in now, I am hoping someone may be able to clarify what input from the legal subcommittee on the matter of legal services procurement was not taken forward.
I am quite out of the loop as to how the legal subcommittee interacts with outside counsel, and so I am hoping someone can also clarify for me what interactions the subcommittee has (if any) with Bird and Bird directly? I imagine it would be helpful and most efficient for there to be a continuos, factual dialogue between the subcommittee (as client) and Bird and Bird (as attorneys). I'm not sure that's happening, or can happen, if the client is instead ICANN org. We might want to consider what a better mechanism may be to faciliate factual dialogue between the subcommittee and Bird and Bird moving forward.
And I really want to emphasize that this should be factual dialogue so that all the facts are on the table, and not an opportunity for any stakeholders to attempt to persuade external counsel to take a particular position.
‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐
On Friday, 24 May 2019 14:48, Stephanie Perrin <stephanie.perrin at mail.utoronto.ca> wrote:
> Thanks for this explanation Marika. What is the precise date of the previous engagement with Bird and Bird re Thick transition? I would point out that while you put my name first, I was not the principal penholder on that document, Diane did all the heavy lifting.
> I think a few learnings discussed prior to jumping into phase 2 might be helpful here. Some have been addressed already no doubt, but forgive me for repeating them in this roundup:
> 1. We have asked some remarkably basic questions in the past. (e.g. to Chris Kuner in the RDS group days). This is a waste of money in my view. We need to focus on good questions. The legal subcommittee is helpful in weeding these unfortunate questions out, but the committee as a whole need to also vet the questions.
> 2. We need to watch very carefully for hidden policy decisions/assumptions, both in the legal questions we ask, and in the technical approaches we assume we are taking, that are in fact resting on policy decisions/assumptions that have not been approved by the GNSO Council. In my opinion, a test should be applied as we go through our work to help discern these buried assumptions. Should not be hard to develop this, and would prevent us having to constantly rehash things.
> Cheers Stephanie
> On 2019-05-23 19:36, Marika Konings wrote:
>> Please see ICANN orgs response to the EPDP’s question below. This response will also get posted here: https://community.icann.org/x/5BdIBg.
>> Is there an attorney-client relationship between ICANN Org and Bird & Bird?
>> Dear EPDP Team:
>> In light of your recent question, “Is there an attorney-client relationship between ICANN Org and Bird & Bird,” and related communications on the EPDP Team list, we wanted to provide this background.
>> ICANN org retained the law firm of Bird & Bird as an additional expert to help advise on GDPR matters, including advising the EPDP Team. There is an attorney-client relationship between ICANN org and Bird & Bird. In connection with this engagement, Bird & Bird is providing analysis on issues related to the EPDP’s work that is being shared with the EPDP Team. In [announcing](https://mm.icann.org/pipermail/gnso-epdp-legal/2019-January/000015.html) this engagement to the EPDP Team, ICANN org noted that ICANN has used the services of Bird & Bird in the past in a similar engagement, in providing public advice to the community Thick WHOIS Implementation Review Team. Given the positive experience with working with Bird & Bird on that public advice, Bird & Bird’s understanding of ICANN and its ecosystem, as well as its deep expertise in international privacy and data protection matters, ICANN org determined that the Bird & Bird team could help provide additional expertise to advance the efforts of ICANN org and the GNSO Expedited PDP Team.
>> Members of the EPDP Team’s legal committee proposed using the same independent outside counsel for both the EPDP Team and ICANN Org. To that end, in the “Considerations for Procurement of Legal Services” [document](https://mm.icann.org/pipermail/gnso-epdp-legal/2019-January/000012.html) compiled by Kurt Pritz, the Phase 1 Chair, which incorporated the Statement of Work written by Stephanie Perrin and Diane Plaut, as well as a note on Conflict (by Margie Milam), and on possible efficiencies by Thomas Rickert, it was noted that the same outside counsel could be used for both the EPDP Team and ICANN org. The notes to ICANN included in the “Considerations” document stated that it was the EPDP Team’s belief that both ICANN org and the EPDP Team would require answers to the same or similar questions and that, therefore, reaching out to one firm might avoid duplicate costs and also potentially conflicting advice.
>> I hope that this background is helpful. Please let us know if you have further questions or wish to discuss this topic further.
>> Dan and Trang
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